#1. In the subpoenas duces tecum at issue, the United States seeks information from third party

architects who worked with Cinemark in the design and construction of its stadium style movie

theaters regarding, in pertinent part, the decisions that were made when designing and constructing

1 While this motion is styled as a Motion for Protection and to Quash, it is primarily a motion toquash. See id.these theaters, including Texas Accessibility Standards (“TAS”) related decisions. Cinemark has

filed a broad objection to the production of these documents, raising vague, often half-articulated

objections and unsupported claims of privilege and protection in support of its on-going efforts to

thwart almost all discovery necessary and relevant to prove the United States’ pattern or practice

claim against Cinemark.

However, this Court does not have jurisdiction to entertain that portion of Cinemark’s

Motion to Quash seeking to quash discovery of documents requested of the Beck Group because

that subpoena issued from the Northern District of Texas. The United States District Court for the

Northern District of Texas is the only court with jurisdiction to review a motion to quash a

subpoena duces tecum issued by that court. Also, with regard to the documents sought from both

third party architects, no legitimate claims of Cinemark’s privilege or confidentiality applies to

these documents. In addition, Cinemark does not have standing to complain that the discovery is

irrelevant, overbroad or creates an undue burden on the third party architects. It is beyond serious

question that the information sought by the United States from Cinemark’s architects is relevant to

the claims and defenses of the parties in this litigation. Moreover, TK Architects has already

agreed to produce almost all of the requested documents. As such, Cinemark’s Motion to Quash

should be denied.

A. THIS COURT DOES NOT HAVE JURISDICTION TO REVIEW THE MOTION TO

QUASH THE SUBPOENA FOR THIRD PARTY ARCHITECT THE BECK GROUP

Pursuant to Rule 45(c)(3)(A) of the Federal Rules of Civil Procedure, a motion to quash or

modify a subpoena must issue form the court from which the subpoena was issued. See also 9A

claims that the discovery requests are irrelevant, overly broad and objectionable - all arguments it

has no standing to raise.

Rule 45(c)(3)(A) of the Federal Rules of Civil Procedure permits a court to quash or

modify a subpoena in four limited situations: (i) if the subpoena fails to allow a reasonable time for

compliance; (ii) if the subpoena requires a non party to travel more than 100 miles to produce the

2 Cinemark notes that the subpoena duces tecum for TK Architects is procedurally defective as itissued from this Court instead of from the district court in which TK Architects has its principal of business.See Motion to Quash, p. 7, n. 9. TK Architects, the only entity with standing to make this argument, hasalready agreed to produce documents sought by the relevant subpoena. See letter of March 12, 2004 fromG. William Quatman to Phyllis M. Cohen, attached as Exhibit 1.

3 As the discussion supra demonstrates, this Court has no jurisdiction to entertain the motion to quashthe subpoena for the Beck Group. However, the arguments raised in the remainder of this brief with regardto Cinemark’s failure to allege or demonstrate legitimate claims of privilege or confidentiality requiring thisCourt’s protection, and Cinemark’s lack of standing to contest the relevancy or scope of the documentssought by the United States from third parties apply to the Beck subpoena as well.requested documents; (iii) if the subpoena requires disclosure of privileged or other protected

matter and no exception or waiver applies; or (iv) if the subpoena subjects a person to undue

burden. A party, in contrast to the entity toward whom the third party subpoena duces tecum is

directed, only has standing to object to production of documents containing privileged or other

protected matter; it does not have standing to raise objections based upon relevancy, undue burden

or the alleged broadness of the document request. 9A Charles A. Wright and Arthur R. Miller,

Federal Practice and Procedure, § 2459 (1995)( “A motion to quash, or for a protective order,

should be made by the person from whom the documents or things are requested. Ordinarily a

party has no standing to seek to quash a subpoena issued to someone who is not a party to the

action unless the party claims some personal right or privilege with regard to the documents

sought”).4 Cinemark expressly acknowledges these limitations upon its ability to object to the

third party subpoenas when it cites authority contrary to its own motion that demonstrates that

Cinemark only has standing to raise legitimate claims of privilege and/or personal right limited to

the Cinemark corporation when objecting to third party subpoenas duces tecum. See Motion to

5 While Cinemark asserts that it seeks “protection . . . with respect to requests for productionconcerning compliance with ADAAG or TAS provisions other than Section 4.33.3,” see Motion to Quash,p.8, its objections are based upon relevancy grounds (it claims the requests are overly broad and improper),not on grounds that some privilege is implicated. As the discussion infra demonstrates, Cinemark does nothave standing to raise such objections. Also, Cinemark’s objections notwithstanding, such information isrelevant. Cinemark implies that this Court, in its Order of October 23, 2000, expressly prohibited productionof information other than that regarding compliance or interpretation of Section 4.33.3. Id. at p. 10. That isnot accurate. Both that Order and this Court’s previous Order of March 22, 2000 (Docket No. 46) expresslyordered Cinemark to produce documents in relation to ADA compliance generally. Moreover, that Order waslimited, in part, because of offers by the United States to limit production at that time to documents regardingthe appropriate interpretation of, and compliance with, Section 4.33.3. However, this Court also said that theoriginal request, which covered documents related to compliance with the ADA, was "in large part"appropriate to the case. Now, the decision by the Sixth Circuit in this case has put into question the relianceby Cinemark on the TAS inspector’s certification making discovery on those issues relevant and necessary.United States v. Cinemark, 348 F.3d 569, 581-83 (6th Cir. 2003). Cinemark raises summary objections to the subpoenas duces tecum based, in pertinent part,

on specious, summary claims of common interest privilege, attorney client privilege, and work

privilege and work product privilege - and in a footnote asserts, without further elucidation, a claim

of common interest privilege. These claims of privilege are especially perplexing and erroneous

because there is no legitimate common interest privilege, attorney-client privilege, or work product

privilege Cinemark can claim to documents either it did not create, or did create but shared with

third parties who do not have identical interests with Cinemark, and who are not parties to this

litigation. See also United States’ Second Motion to Compel (Docket No. 60). Cinemark’s spurious

claims of privilege and the summary manner in which such claims are made demonstrate its

fundamental misunderstanding of both the showing necessary to support claims of privilege and

protection and the proper scope and breadth of these privileges.

The party seeking to claim privilege holds the burden of proof. Matter of Bevill, Bressler &

6 Cinemark failed to make any effort to contact the United States to discuss the issues raised hereinprior to filing for the instant protective order nor is its Motion to Quash accompanied by the requiredcertification of any good faith efforts to resolve these issues. Hence, its motion for protective order isdefective and should be dismissed.Schulman Asset Management Corp., 805 F.2d 120, 123 (3rd Cir. 1986). See also United States v.

Dakota, 197 F.3d 821, 825 (6th Cir. 1999) (the party asserting the discovery privilege has the

burden of establishing its existence). Moreover, summary unsupported claims of privilege, as

Cinemark has raised here, without detailed descriptions of the documents sought and explanations

of how such documents are privileged, are insufficient to prove privilege and on this basis alone

Cinemark’s motion should be denied. The entity seeking protection from production based upon

“a claim that it is privileged or subject to protection as trial preparation materials . . . shall be made

expressly and shall be supported by a description of the nature of the documents, communications,

or things not produced that is sufficient to enable the demanding party to contest the claim.” Fed.

45(d)(2)’s] purpose is to provide a party whose discovery is constrained by a claim of privilege or

work product protection with information sufficient to evaluate such a claim and to resist if it

seems unjustified. The person claiming a privilege or protection cannot decide the limits of [the

United States’] own entitlement.8

Even if Cinemark had provided information sufficient to assert its claim of privilege, such

privileges do not apply to the documents requested in the contested subpoenas. Neither TK

Architects nor the Beck Group are litigants or potential litigants in this action, nor are its interests

identical to Cinemark’s regarding the United States’ investigation and litigation of Cinemark’s

stadium style theaters or other companies’ stadium style theaters. As such, these documents are not,

and could not be, protected by any common interest privilege.

7 See Schorr v. Briarwood Estates Ltd. Partnership, 178 F.R.D. 488, 491 (N.D. Ohio 1998)(partyseeking protection has the burden of making a specific and documented fatual showing with regard towhich claims of protection apply.)8 A person claiming a privilege or protection who fails to provide adequate information about theprivilege or protection claim to the party seeking the information is subject to an order to show cause whythat person should not be held in contempt under subdivision (e). Motions for orders and responses to themare subject to the sanctions provisions of Rules 7 and 11. Id. The joint-defense/common interest privilege is an extension of the attorney client privilege

that enables counsel for clients facing a common litigation opponent to exchange privileged

communications in order to adequately prepare a defense without waiving either privilege. Haines

Moreover, third party disclosures automatically waive any claims to attorney-client

to third parties waives the protection unless common interest privilege applies); United States v.

documents. The Sixth Circuit has held that a communication is protected by the attorney-client privilege:"(1) where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such,(3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at hisinstance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless theprotection is waived." Reed v. Baxter, 134 F.3d 351,355-56 (6th Cir. 1998). With respect to the documentssought by the United States, the only attorney-client privilege that could possibly exist would becommunications between TK Architects and its own counsel, not Cinemark’s, regarding legal advice orcommunications or between the Beck Group and its own counsel regarding legal advice – and which alsosatisfied the other criteria established by the Sixth Circuit. No such privilege has been raised at this point.See Royal Surplus Line Insurance Co. v. Sofamor Danek Group Inc., 190 F.R.D. 505, 513 (W.D. Tenn.1999) (there is no attorney-client privilege where there is no attorney involved); Allendale, 152 F.R.D. at137 (same). Moreover, Cinemark’s claim of work product privilege is also erroneous. “The work productprivilege protects the work of the attorney done in preparation for litigation.” In re Grand Jury Proceedings,33 F.3d 342 (4th Cir. 1994). Once a document is shared with the third party architects (and the joint defenseprivilege is found inapplicable, as it is here), any claims for work product are waived. See In re Lindsey,158 F.3d at 1282; McPartlin, 595 F.2d at 1336-37.

11 Cinemark, who has the burden to prove that these privileges apply, see discussion supra, has offeredno evidence that demonstrates that the third parties in this instance, TK Architects and the Beck Group, faceidentical legal issues in this case and absent such showing, Cinemark can not simply conceal documents behindspurious claims of privilege. Matter of Grand Jury Subpoena, 406 F.Supp. at 389 (burden is on the partyasserting the applicability of the joint defense privilege to demonstrate that the clients reasonably believed thattheir statements were being made within the context and in furtherance of their joint defense).McPartlin, 595 F.2d 1321, 1336-37 (7th Cir. 1979), cert. denied, 444 U.S. 833 (1980) (once third

party disclosure occurs, then privileges are waived, unless a common interest argument can

In addition, the documents sought, regarding the Department of Justice’s ongoing

had, and when, regarding the requirements of Section 4.33.3 of the Standards for Accessible

Design; whether Cinemark knew or should have known that comparable lines of sight included

factors other than obstruction and when it knew that; whether Cinemark knew or should have

known that its stadium style theaters did not provide lines of sight to individuals in wheelchairs

and their companions comparable to those provided its other patrons; and whether it knew or

12 Furthermore, even if Cinemark intended to maintain a privilege when it shared documents with thearchitectural firms, the disclosure itself is sufficient to waive the privilege. United States v. Mass. Inst. ofTech., 129 F.3d 681, 684 (1st Cir. 1997) (while a client's intent to maintain a privilege is ordinarily necessaryto continued protection, it is not sufficient).should have known that certain of its stadium style theaters erected in Texas did not, in fact,

comply with the TAS and so do not evidence compliance with the ADA, rebutting the presumption

of compliance with the ADA for those Texas theaters.

2. The documents sought pursuant to the subpoenas duces tecum do not containconfidential information

Nor can Cinemark prevail in its novel claim that protection should be granted regarding the

requests for production of documents containing supposed “confidential business dealings.” See

Motion to Quash, p. 10. Cinemark claims that the United States’ request to the third party

contracts or billings by project, contracts and their riders and addendums, subcontracts, and the

identity and professional position of TK Architects who worked on design issues for Cinemark’s

stadium style movie theaters - contain confidential business dealings and so should be protected.

Id. Once again, Cinemark makes no effort to explain how such documents contain “confidential

business dealings” requiring this Court’s protection nor does it cite to any case law or precedent in

support.13 As stated previously, such blanket assertions, without more, do not suffice to satisfy

Cinemark’s burden to prove that such information should be protected.14 Furthermore, such

information is necessary and relevant to the United States’ claims inasmuch as the requested

information could show which entity made certain decisions and the basis upon which such

decisions were made, and how much business Cinemark channeled to the architecture firms, which

13 Moreover, even if Cinemark had properly pled that such documents were protected, such protectionis not absolute. Rather, Rule 45(c)(3)(B)(i) of the Federal Rules of Civil Procedure provides that, withrespect to disclosure of a trade secret or other confidential research, development, or commercialinformation, a court may protect that person with a motion to quash, modify or protect by orderingproduction only upon specified conditions. It is well-settled that “there is no absolute privilege for tradesecrets and similar confidential information.” Charles Alan Wright & Arthur R. Miller, Federal Practiceand Procedure, § 2043 (1994). However, in the instant case, Cinemark does not even allege that thesedocuments contain trade secrets or other confidential research, development, or commercial information.

14 See Schorr, 178 F.R.D. at 488.

would be necessary to show any bias. The names and titles of architects who worked on

Cinemark’s projects also is necessary to assist the United States in identifying potential deponents.

3. Cinemark has no standing to object, as it does here, that the production of documentsby TK Architects is irrelevant, overly broad and imposes an undue burden

Cinemark seeks to quash the subpoenas on the basis that such document requests are

irrelevant, overly broad and create an undue burden on these third party architects.15 However, as

privilege or protection are raised, a motion to quash, or for protective order, can only be made by

the person from whom the documents are requested. As such, Cinemark has no standing to object

on the basis of relevancy, scope or undue burden to the information requested in the third party

subpoenas. Moreover, the only subpoena which issued from this Court and for which this Court

has jurisdiction, see discussion supra, was to TK Architects, and it has already agreed to produce

most all of the requested information.

In addition, assuming arguendo that Cinemark had standing to seek to quash TK

Architect’s (or the Beck Group’s) subpoena duces tecum on grounds of relevancy, which it does

not, the information sought by the subpoenas is clearly relevant. See infra at p.10. Major issues

still must be resolved in this pattern or practice case alleging violations of Title III of the ADA.16

15 Cinemark also complains that these requests for production are duplicative of prior documentrequests to Cinemark, see Motion to Quash, pp. 2-3, 7-8, conveniently ignoring that Cinemark has failed toproduce much of the discovery propounded by the United States. The only discovery Cinemark hasproduced to date are some as-built architectural plans, some TAS documents, documents created by theUnited States and NATO documents. See Plaintiff United States’ Reply Brief in Support of Its RenewedMotion to Compel Discovery and to Reschedule In Camera Review, pp. 3, n4, 5, n.6 (Docket No.131);Plaintiff United States’ Supplemental Brief in Support of Its Renewed Motion to Compel Discovery and toReschedule In Camera Review, p.4.(Docket No. 125).

16 Examples of outstanding issues include, in pertinent part: whether Cinemark provided its wheelchairpatrons and their companion with lines of sight comparable to that offered to its other patrons; whetherCinemark knew or should have known that its stadium style theaters nationwide did not comply with theADA; whether Cinemark’s theaters within the jurisdiction of the Fifth Circuit did provide its wheelchairpatrons and their companions with unobstructed views to the screen; whether its theaters in Texas wereactually constructed in compliance with TAS; whether Cinemark knew or should have known, either from itsAs such, discovery of the requested material is necessary and relevant to prove the United States’

claim that Cinemark engaged in a pattern or practice of ADA violations.17

Cinemark, however, tries to artificially restrict the United States to discovery limited to two

discrete issues: the extent to which lines of sight must be similar for wheelchair patrons in stadium

style theaters; and whether Cinemark relied on any previous advice and representations by the

government in order to decide whether or not any relief to be accorded will apply on a prospective

basis only. See Motion to Quash, pp. 6-7. It then claims that “No other discovery concerning

Cinemark, including discovery on TK Architects or The Beck Group, is required pursuant to the

Sixth Circuit’s decision. Cinemark inexplicably and intentionally ignores the broad scope of the

pending allegations against Cinemark18 and the fact that these claims are still very much alive in

this litigation.19

third party architects or other entities, that its stadium style theaters in Texas did not actually comply withTAS. Such information with regard to stadium style theaters located within the jurisdiction of the Fifth Circuitis relevant both to liability and remedy issues. See United States Opposition to Defendant’s Motion for PartialSummary Judgment for all Stadium Style Movie Theaters within the Fifth Circuit (Docket No. 139).17 Review of architectural plans and design decisions contemplated, rejected or made, and informationregarding possible retrofitting, would shed light on when and why such decisions were made. Also,documents regarding compliance with the ADA or TAS, including information or advice, checklists andwaivers, could demonstrate that: Cinemark did not even consider or did not provide wheelchair patrons withcomparable lines of sight and/or unobstructed views compared with that which was offered to its otherpatrons; that the TAS inspectors were not properly or appropriately enforcing TAS; and whether Cinemarkwas aware that the TAS inspectors were not properly or appropriately enforcing TAS, either in regard to thelocation and placement of wheelchair seats or with regard to other accessibility issues. In addition,documents regarding complaints or compliance reviews could demonstrate that Cinemark was well awarethat its stadium style theaters did not comply with the ADA or TAS.

19 A detailed discussion of the facts of this case is found in Plaintiff United States' Opposition toDefendant's Motion for Partial Summary Judgment for all Stadium-Style Movie Theaters Within the FifthCircuit, pp. 1-4, "Statement of Undisputed Facts” (Docket No.139) and will not be reiterated here. TheUnited States does note, however, that Cinemark, in its “Undisputed Facts” section of its Motion to Quashmisquotes the Department of Justice’s representations to the Sixth Circuit in this case, see Motion to Quashat p. 7, claiming that the Department stated that “because Lara was still controlling authority in the FifthCircuit, ‘the district court should not order relief regarding the theaters within [the Fifth Circuit].”However, a simple review of the actual document, which Cinemark thoughtfully attached to its Motion toQuash, clearly demonstrates that the United States instead asserted that “If Lara is still the law of the Fifth Furthermore, the amount of discovery a plaintiff may properly obtain is not limited by

Defendant’s biased views regarding the merits, or the extent, of plaintiff’s case.20 A far more

generous standard applies. Rule 26(b)(1) of the Federal Rules of Civil Procedure, as amended on

December 1, 2000, provides, in pertinent part, that “Parties may obtain discovery regarding any

matter, not privileged, that is relevant to the claim or defense of any party . . . Relevant information

need not be admissible at the trial if the discovery appears reasonably calculated to lead to the

2000 Amendments to Rule 26(b), the relevancy of a discovery request is to be broadly construed

Circuit at that time [the remedial phase of this litigation], the district court should not order relief.”20 See Donovan v. Central Baptist Church, Victoria, 96 F.R.D. 4, 5 (S.D. Tex. 1982); see also EEOC v.Electro-Term, Inc., 167 F.R.D. 344, 347 (D. Mass. 1996)(Defendant’s objections are “based on certainassumptions which have not as yet been proven” and address “the ultimate merits of the case rather than thepending question of discovery.”)and that “a request for discovery should be considered relevant if there is ‘any possibility’ that the

information sought may be relevant to the claim or defense of any party”).

CONCLUSION

For the forgoing reasons, Cinemark’s Motion to Quash should be denied.